Director of Public Prosecutions v Khoo

[2024] VCC 1491

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -22-01525

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZHENG KHOO

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2024
DATE OF SENTENCE:	24 September 2024
CASE MAY BE CITED AS:	DPP v Khoo
MEDIUM NEUTRAL CITATION:	[2024] VCC 1491

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW - SENTENCING

Catchwords: Trafficking in a drug of dependence – trafficking controlled drugs – importing a marketable quantity of a border controlled drug – failing to comply with an order made under subsection 3LA(2) of the Crimes Act 1914 (Cth) and the offence to which the relevant warrant related was a serious offence – plea of guilty – serious offending – no criminal history – good character – general deterrence – just punishment – imprisonment and non-parole period

Legislation Cited:     Crimes Act 1914 (Cth), s 16A(2); Sentencing Act 1991 (Vic), s 6AAA

Cases Cited:              

Sentence:6 years 6 months imprisonment, non-parole period 3 years 3 months; s 6AAA: 8 years 6 months, non-parole period 5 years 8 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. White	Office of Public Prosecutions
For the Offender	Ms E. Clark	Fayman Lawyers

HIS HONOUR: 

1Zheng Jack Khoo, you have pleaded guilty to trafficking 1,4-Butanediol, maximum penalty 15 years; importing a marketable quantity of methamphetamine, maximum penalty 25 years; trafficking methamphetamine and MDMA, a rolled-up charge, maximum penalty 10 years; and failing to provide assistance in accessing your mobile phones, maximum penalty 10 years, all variously occurring in the period from October 2020 through to February 2021.

2The agreed basis of your guilty pleas are set out in the prosecution summary dated 10 April 2024 and I adopt the contents of that summary in this sentence.

3In short, the four charges represent the following conduct:

4For Charge 1, you recruited and worked with another offender, Wae Kang Ong, to import Butanediol to an address of another co-offender, albeit without knowing the quantity.  You did that in October 2020.  The consignment consisted of 21 bottles totalling 19.66 kilograms of that liquid.  In November 2020 you discussed with Kang what to do and how to avoid responsibility for it if discovered.

5For Charge 2, trafficking the methamphetamine and MDMA, in December 2020 and January 2021, you agreed to sell Kang about a gram of methamphetamine and you agreed to sell for him about 30 tablets containing MDMA. 

6Also in January 2021, on Charge 3, you dealt with 401 grams of methamphetamine in connection with its importation by co-ordinating with Kang for somebody to obtain an address for delivery and a person to accept it when it was delivered.

7On Charge 4, upon your arrest on 3 February 2021 police found you at your home with five mobile phones and after informing you that there was an order that you must assist them by providing access codes, you refused.

8During your police interview you were shown the phones again and told to provide access codes but you again refused after having obtained legal advice.

9You have remained in custody since your arrest and being a Chinese speaking Malaysian citizen you have been on remand with few others during that time who speak your language. 

10You have had limited contact by phone only with your family in Malaysia and I am told and accept that you have otherwise been a compliant prisoner.

11I find that your time on remand has been made harder for you than for other prisoners who have English as a first language and because of your isolation from friends and family who are in another country.

12You pleaded guilty in April of this year and I accept this means you have taken responsibility for your offending.  You have thereby facilitated the course of justice and avoided the need for a trial which would have been costly and inconvenient to witnesses and the community generally.

13I accept that your plea demonstrates your remorse for what you did and I assess that alongside the comments you have made to those who know you well as expressed by Mr Theo is his reference for you.

14You are about to turn 30 years old.  You came to Australia about six years ago when you were in your early 20s.  You grew up in Malaysia with a supportive family and until your departure worked with them in the family restaurant.  You also did significant work for charities including through First Aid, as was provided and unchallenged by the prosecutor.

15To me I accept that shows that you have had, for extended periods, a positive attitude and one that takes social responsibility seriously and that you have worked to help others.  Consistent with that you have no criminal history.

16The reference from Yip Cheng Theo demonstrates that you are a responsible person, a hard worker, a contributor to your community and not somebody expected to be involved in this kind of offending.  That is Exhibit 1.

17My findings about your character are also bolstered by the certificates demonstrating the work and schooling you have done in custody.  Exhibit 2.

18As to sentencing, it must be said that the maximum penalties for these charges show just how serious this offending is.  The maximum for the importation alone is 25 years in prison.

19The damage caused to often vulnerable or young members of the community by drugs of this nature is very grave.  This is why trafficking and importation of illicit drugs must carry heavy or stern sentences.

20Objectively speaking, the gravity of your conduct, or if you like your moral culpability for what you did, is to be assessed by reference to the fact that you organised others, you knew the types of drugs involved.  Whilst you did not know the quantities, you were not a person who was addicted to using those substances and so it is not an explanation for your offending that you were acting in support of your own needs.  Your conduct consisted of different actions on different occasions, exemplified by the four different charges and the charges relate to different substances.

21I accept, however, that your offending happened during the difficult period of the Covid pandemic when work was relatively unavailable, that there was higher demand from drug users for these substances, that you felt obliged to continue to send money to your family.  I also take into account that the Butanediol substance has been understood to be a profitable drug but at a lower level than others.

22In relation to the charge of trafficking the methamphetamine and MDMA, I accept that the quantities in relation to that charge were at the low end.

23In all the circumstances the degree of your responsibility for what happened is high.  Your moral culpability, I find, is moderate to high, taking into account those matters that are favourable and those that are not.

24I will impose sentence on you partly in order to deter others from doing what you did.  I will also impose sentence in order to exact just punishment on you for your crime.

25You have no criminal history.  I accept that you are otherwise of good character, and notwithstanding the period of a few months over which you offended, I find there is little need for weight to be given to specific deterrence or protecting others from you in the future.

26I have also given weight to your age at the time, in your mid-20s only, and accept that your knowledge of the risks you were taking was likely to have been misguided, informed by somewhat youthful grand notions about what you could achieve.  You are experiencing a hard lesson about how serious drug trafficking and importation is.  You are not a child, but I accept that your age at the time tends towards leniency.

27I have had regard to imposing a total sentence that is proportionate to the total of your conduct so as to avoid unnecessarily cumulating sentence upon sentence, leading to an unfair total. I have also had regard to each of the factors in s16A(2) of the Crimes Act 1914 (Cth) in relation to Charges 2,3 and 4.

28Your counsel raised the question of your deportation once you are released, and I accept that you will be deported from Australia.  I also accept, however, that you had no intention to remain in this country and so I find that you will not be suffering any loss of a chance to remain here, it having been your intention to do so.  I accept that you intended to return home to Malaysia and to your family and so it is unlikely that you are spending time in custody on remand stressed or distressed about that eventuality.  In those circumstances, whilst you will be removed from the country, I have not reduced your sentence in any significant way because of that.

29As to parity or equal treatment with other offenders, I note that Mr Kang, on the importation charge, was sentenced to six years' imprisonment, and on the trafficking charge, Charge 1, to three years.

30I note that you are younger than him by a few years and that in the overall picture of your offending, he, having faced a charge of cultivating a commercial quantity of drugs prior to the importation, that his offending overall was more serious than yours.

31I have also accepted the evidence of your good conduct in the community and find that that is impressive evidence in terms of your prospects for rehabilitation and your character.

32You have been in custody since February 2021.  The Covid-19 pandemic has rendered your time in custody more burdensome.  You have during relevant periods been subjected, I am sure, to lockdowns, restricted movements, reduced access to programs, and of course no in-person contact with any friends in Australia.  This means the time you served during 2021, and to some extent 2022, has been more difficult than it should have been, and I will reduce your sentence accordingly.

33As to your future prospects, I find you have good to excellent prospects for rehabilitation based on your history, or lack of criminal history, your family support, the developing insight you have about the dangerousness of drugs and the lack of any risk factors that I could identify in relation to things that are beyond your control.

34The parties agreed that you must receive a substantial imprisonment term, and I agree also.  It will be a sentence that attracts a non-parole period and so it is not for me to decide when or how you will be released but rather for the appropriate authority.

35I was provided comparative cases by the Commonwealth and I have had regard to them.  Albeit, save for the question of parity, other cases are of somewhat limited value and I will judge your case based on the facts that apply to you.

36Your sentence is as follows:

37On Charge 1, trafficking 1,4-Butanediol, three years' imprisonment. 

38I note that is a State charge and so that is a State sentence.  I decline to impose a non-parole period on that sentence because the sentences I am about to impose on Commonwealth offences will make it obvious that any parole period I did impose on the State sentence would have no effect.  I also note that the period of three years has already passed.

39On Charge 2, for trafficking methamphetamine and MDMA, the sentence is 15 months.  That 15 month sentence is to commence, or is to be taken to have commenced, nine months after the commencement of the State sentence.

40On Charge 3, importation of methamphetamine, your sentence is five years and six months. 

41On Charge 4, failing to assist, the sentence is six months. 

42The sentence on Charge 3 is to commence one month after the commencement of the sentence on Charge 4.

43The sentence on Charge 4 is to commence two months after the sentence on Charge 2.

44The total effective sentence that I intend to impose is six years and six months.

45That is a total bearing in mind the State and the Commonwealth offences.

46On the Commonwealth sentence I fix a non-parole period of four years.

47I declare that you have served 1,329 days and direct that this be reckoned as a period already served under these sentences.

48In accordance with s6AAA of the Sentencing Act in Victoria, but for your guilty plea I would have imposed a total sentence of eight years and six months and fixed a non-parole period of five years and eight months.

49My intention is that the first nine months be solely in accordance with the State sentence and then the 15 months commences on Charge 2.  After two months of that 15 months the sentence on Charge 4 is to commence, and then after one month of that sentence, so a total of three months having gone by after the nine months, the sentence on Charge 3 is to commence, making a total of six years, six months.

ADDENDUM TO SENTENCE

50Immediately following the sentence hearing, the following amendment was communicated to all parties and was not disputed.

His Honour intended the 4-year non-parole period to apply to both the State and Commonwealth sentences, and not the Commonwealth Sentences alone. Therefore, the appropriate non-parole period on the Commonwealth Sentence is 3 years and 3 months, as reflected in the Orders.

51Therefore, the non-parole period in this matter is 3 years and 3 months.

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